A longer version of this post was originally published in Religion and Politics.
By Daniel Bennett
This fall, the seemingly inevitable confirmation of Brett Kavanaugh to fill Anthony Kennedy’s seat on the Supreme Court means a number of things. It means that President Trump will have placed the same number of justices on the Court as each of his past three predecessors, with more than two years to go until he is up for reelection. It means the Court will tilt decidedly to the right for the foreseeable future. But for white evangelicals and Christian conservatives more broadly, it means that no matter how the culture continues to evolve against them in the years to come, they can expect to find refuge at the nation’s highest court. These were the terms of the deal Christian conservatives made with Donald Trump. And now, with Kavanaugh set to replace Kennedy, they are about to receive their reward.
Kavanaugh was not necessarily Christian conservatives’ first choice to replace Anthony Kennedy. Yes, their response to Kavanaugh was overwhelmingly positive, with even “Never Trump” conservatives praising the nomination. But many Christian conservatives would have liked Trump to nominate Amy Coney Barrett, a former Notre Dame law professor and now a federal judge. Already a star in conservative legal circles, Barrett became a favorite of Christian conservatives during her confirmation hearing last summer, when Senator Dianne Feinstein critiqued the influence of Barrett’s Catholic faith on her legal reasoning, concluding, “The dogma lives loudly within you.” After Trump picked Kavanaugh, David French wrote that “for a critical part of Trump’s base, the cheers for Kavanaugh were a tad forced.” Still, if Amy Coney Barrett would have been a grand slam home run for the Christian conservatives who bet big on Donald Trump, then Brett Kavanaugh is a bases-clearing double—not as flashy, and won’t have them on their feet cheering for as long, but still puts them in great position to win.
Win at what, though? Christian conservatives may still be a potent voting bloc, but they are becoming more and more of a cultural minority. As a result, they will find themselves increasingly turning to the courts to protect long-cherished rights and to deliver on sought-after cultural goals. This new reality helps explain their bargain with Donald Trump: With Kavanaugh poised to give the Supreme Court a more pronounced rightward lean, Christian conservatives should anticipate future victories on a variety of issues.
Perhaps no issue is of greater importance to Christian conservatives than religious liberty. In my research on the Christian legal movement, I found that the movement and its interest groups pay greater attention to religious liberty than any other issue. Of course, critics suggest that this issue carries specific meaning for Christian conservatives. For example, when the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission earlier this year, Christian conservatives celebrated a big win for religious liberty, while others characterized the ruling as a license to discriminate. And despite the perceived narrowness of the Kennedy opinion, the result was still favorable for Christians who harbored disagreement with same-sex marriage. Masterpiece will not be the last word on the collision between religious liberty and LGBT rights, but it was a victory that Christian conservatives desperately needed.
With Kavanaugh replacing Kennedy, the “narrow” 7-2 decision in Masterpiece could be a stronger 5-4 decision in the future, with the religious liberty interests of Christian conservatives on the winning side. Indeed, future conflicts between religious liberty and LGBT rights are more likely to be decided in favor of the former. Kennedy authored Romer v Evans, Lawrence v. Texas, and Obergefell v. Hodges—all cases that expanded rights to gay Americans. He will be replaced by someone with a decidedly more conservative (and less libertarian) bent in this area of law. When these difficult issues inevitably arrive at the Supreme Court, Christian conservatives should feel confident with Kavanaugh casting a vote.
If religious liberty is at the forefront of Christian conservatives’ agenda in law and politics, then abortion is close behind. For several decades, Christian conservatives have been campaigning on their opposition to legal abortion. Republican presidents have confirmed 10 justices to the Supreme Court since Roe v. Wade was decided in 1973, compared to just four for Democrats. In that sense, it is surprising that Roe still stands today. Indeed, it was Kennedy—a Ronald Reagan nominee—who helped author Planned Parenthood v. Casey, which affirmed the central holding of Roe by confirming women do have a 14th Amendment right to abortion prior to fetal viability.
Whether Kavanaugh would vote to overturn Roe remains to be seen. Crucially, Christian conservatives would not necessarily need an explicit rejection of Roe in order to see their goals met. While affirming important elements of Roe, Casey also introduced the “undue burden” standard for evaluating state restrictions on abortion access. With Kavanaugh solidifying a conservative majority, more and more state restrictions on abortion could be upheld as not posing an undue burden on women. Whatever the future of abortion in the courts, one would be wise to bet on Kavanaugh joining other conservatives in their skepticism of the Roe precedent. Christian conservatives, who have long dreamed of sending Roe “to the ash heap of history,” could hardly imagine a more promising opportunity.
Inasmuch as it will tip the Supreme Court decidedly to the right, Kavanaugh’s confirmation is what many Christian conservatives were hoping for when they made their deal with Donald Trump nearly two years ago. This demographic has faced no shortage of criticism for their decision. But in another 30 years, when Donald Trump is long gone and the controversy surrounding his time in office is taught in history books, Brett Kavanaugh may very well still be one of nine votes on the nation’s highest court. For Christian conservatives, with the Court on the verge of a solid conservative majority and poised to render favorable judgments on religious liberty and abortion, this deal is increasingly looking like a good one.
Daniel Bennett is an assistant professor of political science at John Brown University. He is the author of Defending Faith: The Politics of the Christian Conservative Legal Movement. You can follow him on Twitter at @BennettDaniel.
As Senator Whitehouse stated so eloquently yesterday, Kavanaugh is there to solidify the power of corporations over American life. If the Court needs to do the occasional tweak to abortion, or rule in favor of a cake baker once in a while, it will do it to keep evangelicals happy. But those things aren’t Job 1. Since conservative evangelicals so rarely complain about our growing plutocracy, I suppose they’re incredibly untroubled by Kavanaugh. But the rest of us are.
Bennett’s article is also typical of conservatives in that he doesn’t even mention that Gorsuch and Kavanaugh represent stolen seats. It’s amazing what conservatives are willing to ignore.
While I appreciate Dr. Bennett’s article, I found it curious that the author did not recognize that “religious liberty” is a highly contested concept. Did the gay couple in the Masterpiece Cake conflict not have religious rights? Did the religious liberty concerns of the owners of Hobby Lobby somehow outweigh the religious liberty of the women denied contraceptive coverage under the company’s health plans? As a panel at the recent APSA meeting demonstrated, “religious liberty” is an essentially contested concept rather than a simple matter. Dr. Bennett should have acknowledged that.
The High Court should never have become a political football.